A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

May 22, 2018

It has happened again--yet another school shooting in our country with multiple fatalities. This shooting is the 16th school shooting this year, an average of about one every week. Parents and teachers are terrified, students are marching, politicians are offering thoughts and prayers, and administrators are struggling with how to protect our nation’s students. We can anticipate over the next few days that someone will proclaim that the latest violence is the result of a “sicko;” we could not, however, predict that incoming NRA president Oliver North would blame the shootings on a culture of violence and all of the boys who have been on Ritalin since “their early years.” Comments such as this only serve to increase the stigmatization of students with mental health issues or special needs. We must not let this happen. The purpose of this blog is not to address the need for commonsense gun laws. Instead, it focusses on addressing other strategies that can help prevent school violence, such as threat assessment plans, and recognizes what does not work, such as profiling of students with special needs (a la Oliver North).

April 23, 2018

COPAA, the Council of Parents, Attorneys and Advocates, released a statement after the Parkland shootings urging us not to use yet another school shooting tragedy as an impetus to marginalize students with emotional issues and mental illness but to remind us that school districts need to address these students’ issues. School districts are mandated under the IDEA to both identify and provide services to students with mental health issues under the classification of Emotional Disturbance. These students need help; they don’t need to be pushed out or excluded from school due to their occasionally very problematic behavioral issues.

April 19, 2018

While I am still digesting the report that just came out, I wanted to share it more broadly. CPS is one of the biggest district's in the US and has huge problems that I see everyday far beyond the parameters of this report. Download Public_Inquiry_Final_Report. I most appreciate the fact that this report puts the problems and obstacles that CPS's computer system creates for parents and students. Another main focus are some of the issues with transportation in Chicago. The issue almost immediately becomes what happens in Phase II of this process which is remediation. Stay tuned.

January 25, 2018

Women across the world are embracing the hashtag #MeToo to publicly share their own experiences with sexual abuse and assault and to seek empowerment. The result of this movement has sent shock waves through our society as powerful figures in politics, journalism, and entertainment have been identified as abusers and suffered consequences. Yet one group has been conspicuously absent from this conversation—the disabled. And unfortunately, the disabled are among the most vulnerable in our society to sexual abuse and assault. Nancy Thaler, deputy secretary of the Pennsylvania Department of Human Services, said, “If this were any other population, the world would be up in arms. We would be irate and it would be the No. 1 health crisis in this country.”

November 21, 2017

Mass shootings keep happening. Mental illness is the easy answer but not the cause. Almost monthly we read about horrific shootings in Las Vegas, Orlando, or small towns in Texas and California. The subsequent finger pointing continues as to why these shocking killings keep occurring. Whether you are for additional gun control laws or against, we clearly need to have a reasoned discussion about the root causes of these shootings. These discussions need to be predicated on one fact: we must not equate these shootings with mental illness. It is too facile to claim as did the President that “mental health is your problem here,” or that “Guns don’t kill people—the mentally ill do,” as did Ann Coulter. These statements are inaccurate and fail to recognize how complicated and nuanced the intersection between gun violence and mental illness is, because data show that the nexus is actually quite small.

Although the image of a lone psychopathic mass shooter is an easy narrative to adapt to understand gun violence, the reality is that persons with mental illness are far more likely to be the victims of violence than the perpetrators. According to the Department of Health and Human Services, persons with severe mental illness are 10 times more likely to be the victims of violent crime than the general population. For instance, people with schizophrenia are 14 times more likely to be victims of violent crime than they are to be the perpetrator. Convenient as it is blame the violence on mental illness, doing so risks further stigmatization of mental illness and subsequent failure for persons who need mental health care to seek treatment.

November 08, 2017

Special education advocates were excited with last March’s Supreme Court ruling on Endrew F. v. Douglas County School District and its determination that students must make “appropriately ambitious” progress in their special education programs under the Individuals with Disabilities Education Act (IDEA). Cases are now coming up that will hopefully begin to flesh out the pararmeters of Endrew F and give more defintion to the term "meaningful progress". The Rowley case, which was decided in 1982, provided some guidance on what constitutes progress, but Endrew further refines it and raises the standards of special education for students. This past October, referencing the Endrew case, the Supreme Court remanded a special education case (E.F. v. Newport Mesa Unified School District) back to the lower court not because of the arguments in the case put forth by the parents, but because the Supreme Court wanted the district court to reconsider the case using the new Endrew standard.

August 31, 2017

Hurricanes hit the most vulnerable the hardest and that applies without a doubt to people with disabilities. The death of Benilda Caixeta, of New Orleans tragically underscores this point. Ms. Caixeta was found drowned in her apartment, next to her wheelchair, despite her repeated calls to 911 pleading for help. Ms. Caixeta’s death served to emphasize one of the many terrible lessons we learned from Hurricane Katrina.

August 08, 2017

The Trump Administration’s February 2017 reversal of an earlier Obama decision ensuring that transgender students under Title IX should be allowed to use the school restrooms of the gender to which they identify has thrown school policies with regards to gender identify into flux. The February 22, 2017 “Dear Colleague Letter” stated that the earlier Obama position had wrested the primary responsibility of devising education policy from the states and local school districts. Despite its unhappy conclusion, the letter reiterated the need for protecting transgendered students from both bullying and harassment. It is highly questionable, however, if those words have any actionable meaning.

March 22, 2017

The following is a reproduced statement as to the critical need to save Medicaid from Trumpcare.

The American Health Care Act (AHCA) jeopardizes healthcare for the nation’s most vulnerable children: students with disabilities and students in poverty. Specifically, the AHCA reneges on Medicaid’s 50+ year commitment to provide America’s children with access to vital healthcare services that ensure they have adequate educational opportunities and can contribute to society by imposing a per-capita cap and shifting current and future costs to taxpayers in every state and Congressional district. While children currently comprise almost half of all Medicaid beneficiaries, less than one in five dollars is spent by Medicaid on children. Accordingly, a per-capita cap, even one that is based on different groups of beneficiaries, will disproportionally harm children’s access to care, including services received at school.

February 14, 2017

Judge Gorsuch has served for the last 10 years on the United States Court of Appeals for the 10th Circuit. In this capacity, Judge Gorsuch has heard several cases related to special education and disability, which has enabled those who have analyzed both his concurring and issued opinions to determine how he might rule on such cases should he serve on the Supreme Court. A review of his decisions over this decade-long period shows that Judge Gorsuch overwhelmingly tends to uphold administrative rulings favoring school districts. As pointed out by Pete Wright, however, in some instances Judge Gorsuch has ruled in favor of students. Overall he is no friend to students with special needs.

How Judge Gorsuch has ruled on previous disability and special education cases is of critical importance. Fortunately, it is not likely he will be able to participate in the 2 pending cases before the Court. The first case currently pending is Fryv Napoleon, which asks if the exhaustion element applies to a 504 claim regarding the use of service animals. The other case, which is even more seminal, is Endrew F. v. Douglas County School District that is likely to result in clarification and possibly raising the Rowley standard and defining more clearly “meaningful” vs “some benefit.” Arguably, Endrew F. is the most consequential IDEA case to be heard before the Supreme Court since Rowley v. Hendrick Hudson School District. It is unlikely that even if Judge Gorsuch is confirmed that he will rule on these cases given oral arguments have already been made before the Court. Nevertheless, there are at least two more disability related cases, including an Obama-era case regarding use of restrooms by transgendered persons, that are making their way through the judicial pipeline and possibly to the Supreme Court.

What constitutes the Rowley standard of “some educational benefit” is frequently the basis of due process actions by families against school districts. The courts have debated “just above trivial” educational benefit versus “meaningful benefit.” In a Rowley-type case, Thompson R2-J Sch Dist. V. Luke P., Judge Gorsuch stated that since a student with autism with severe behavioral issues was making “some progress,” the school was not obligated to provide a residential placement, even though the child was unable to generalize skills and was making no progress outside the school environment. This decision reversed the ruling of an administrative hearing officer, a review officer, and a District Court. This narrow view of what schools can be expected to deliver for students with special needs is very disturbing. Moreover, his willingness to overrule the lower adjudicatory bodies shows a willingness to be a judicial activist to serve a conservative agenda in favor of a school's authority.

In most jurisdictions, IDEA requires that parents must exhaust all administrative efforts before taking a complaint to a district court. In A.F.v. Espanola Pub. Schs, Judge Gorsuch ruled that a district court's dismissal of a lawsuit was justified because a successful mediation on the part of the parents did not constitute exhaustion of administrative remedies and parents could not make subsequent claims under Section 504. This instance shows a willingness to raise the litigation burdens/cost and increase the time needed to have a student's claims adjudicated.

Another particularly disturbing case to me, given that I have represented a number of non-attending students who are frequently unable to attend school in large part because of the utter failure of their district to meet their needs, is Garcia v. Board of Educ. Of Albuqueque Pub. Schs. Judge Gorsuch ruled that even though the district had failed to provide FAPE by reviewing the student’s IEP, the District Court was correct in denying the student’s compensatory educational claims because of truancy. This moralistic stance fits neatly with the narrative that schools use as a justification to not serve students with significant needs who have been unable to attend school.

As pointed out by Pete Wright, Judge Gorsuch has been part of the panel that has also on occasion made very pro-child decisions, including a decision where the District Court wasn’t allowed to delegate its remedial authority to IEP teams (M.S. v. Utah Schs. For the Deaf and Blind) and a decision stating that it was unnecessary for courts to sort through conflicting opinions from different appellate courts to determine what constitutes a need for residential placement in the case of a student who, according to the judges, required a residential placement “under any standard.” (Jefferson County Sch. Dist. R-1 v. Elizabeth E.) In A.M. v. Holmes, Judge Gorsuch came down hard on a school district that arrested a 7th grade student who was fake burping in gym class and suggested that ordering the student to run extra laps or go to the principal’s office might have been more appropriate punishments than having the local police department handcuff the student and take him to jail.

Because we are living in “interesting times,” it is likely that Judge Gorsuch, or a jurist similar to him, will be appointed to the Supreme Court. However, given his clear track record that is not favorable to special education students, Judge Gorsuch is not an acceptable candidate, and we should advocate that our respective Senators reject his confirmation, and if need be filibuster the nomination. The courts are our bulwark against erosion of the rights of students with special needs, and Judge Gorsuch will not be a champion of those rights.